Thoughts and News on Criminal Justice and Correctional Policy in California

Wednesday, October 16, 2013

California Prison Overcrowding: State of the State, October 2013

And now, this is how things stood: the cat was sitting on one branch,
the bird on another… not too close to the cat... and the wolf walked around and around the tree looking at them with greedy eyes. --Sergei Prokofiev, Peter and the Wolf (1936)

Developments in the last few months raise grim questions about the wisdom of leaving California to its own devices in trying to solve its overcrowding problem. Since the initial three-judge panel order in Plata v. Schwarzenengger (2009), the state has fought tooth and nail against the order to reduce population, and the struggle against the court mandate continued even after the Supreme Court confirmed the order, 5-4, in Brown v. Plata (2011). Numerous state appeals and motions to change the order and delay the timeline for population reduction (some of them bordering on contempt of court) have been thwarted. The last of these is the Supreme Court's rejection of the state's appeal yesterday. The Chron reports:

The high court's one-line dismissal - which said only that the court lacked jurisdiction to step in - leaves intact a three-judge federal panel's directive to the state to slash its population of 120,000 inmates in 33 prisons.. . . Brown has been fighting for years the prospect of releasing some prisoners early, saying he was worried it could increase crime. Advocates and attorneys for prisoners have pushed for reforms in sentencing that they say would safely shrink the prison system.Through a spokeswoman, Brown referred Tuesday to a statement released by California Department of Corrections and Rehabilitation spokeswoman Deborah Hoffman, which said officials were "disappointed the state's case won't be heard."

But this rejection is far from being the big victory that inmate rights advocates are seeking. The original order in Plata was to reduce overcrowding in prison to 137.5% capacity, but it famously left it up to the state to find the means to do so. Moreover, Justice Kennedy's celebrated opinion of the court in 2011 explicitly stated that one way of doing so could be via more prison construction. In 2011, activists and advocates felt comfortable in the knowledge that prison construction was impossible; the state was broke and public sentiment was that correctional expenditures were already excessive, to the point that former Governor Schwarzenegger suggested enacting a law that would prohibit correctional expenditures to exceed educational expenditures. It now, however, appears that "the money is there" to start privatizing California's prisons en mass, via lucrative contracts with Correctional Corporation of America and the GEO Group.

California never had dealings with private prison providers on its own soil, though it did send 10,000 of its inmates to CCA institutions out of state and was a significant source of income for the company. This was not because of some principled objection to privatization; rather, it was because the California Correctional Peace Officer Association (CCPOA) actively resisted privatization out of concern for the guards' employment. As Josh Page reveals in The Toughest Beat, CCPOA is so powerful in California that even a prison built in CA by CCA entirely on speculation was left empty. But these difficulties have been resolved: Governor Brown, historically a good friend and ally of the prison guards union, has promised them that they would be employed in these newly-constructed private prisons. This promise made old enemies - state prison guards and private prison providers - into allies, and sealed the deal toward a projected expenditure of $315 million of my money and yours on prison construction.

Obviously CCA is laughing all the way to the bank - a rare and enviable position for a corporation at the end of a recession and during a government shutdown. Here's how this lucrative contract looks from Tennessee, home of CCA. The Nashville post reports:

The lease agreement between CCA and the California Department of Corrections and Rehabilitation calls for the state — which is under a court order to reduce overcrowding in its jails — to pay Nashville-based CCA $28.5 million per year starting Dec. 1. If the two sides agree to two-year extensions after three years, the rent will begin to increase gradually. CCA also has committed to spending $10 million on improvements at its 2,304-bed California City Correctional Center; renovations beyond that will be paid for by California.
"We appreciate the opportunity to expand upon our longstanding relationship with the CDCR and the state of California," said CCA CEO Damon Hininger. "Our ability to react quickly to our partners' needs with innovative solutions that make the best use of taxpayer dollars exemplifies the flexibility that CCA is able to provide."
In conjunction with its California contract news — which had been expected since August — Hininger and his team also said CCA's fourth-quarter profits will be hurt by a number of factors, including the spending needed to reopen its California City complex. Among them: Lower inmate counts related to its contracts with the U.S. Marshals Service and Immigration and Customs Enforcement agency, which are believed to be "due to the furlough of government employees and other consequences of the federal government shutdown."
On top of that, CCA's leadership has begun spending money to prepare vacant prisons in anticipation of more business from California late this year. The total impact of those factors on Q4 numbers isn't yet clear, the company said. Analysts are expecting the company to earn 49 cents per share during the fourth quarter.
Investors chose to put more emphasis on the new California cash that will start arriving in December. As of about 1:35 p.m., shares of CCA (Ticker: CXW) were up about 1.5 percent to $35.81, putting them back in positive territory for the year.

Governor Brown essentially put the ball in the hands of the federal courts, by saying - if you don't give us some time to cope with the expected releases, we'll have to recur to privatization and high-expense construction. This option was produced, as if out of a magician's hat, in the height of the California Criminal Justice Realignment, which presumably redistributes overcrowding and internalizes its expenses by making counties, who are responsible for charging and sentencing, think about incarceration alternatives and manage their own convict population. One has to wonder what good this experiment is if, suddenly, we're building private prisons in three counties and contributing $28.5 million per annum, to the foreseeable future and beyond, to CCA's bottom line.

We will continue following up on developments and reporting as we have for the last five years.

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About Us

We are faculty members and students at UC Hastings College of the Law, affiliated with the Hastings Institute for Criminal Justice. Our posts reflect our respective personal opinions and analyses of correctional and criminal justice policies.